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2011 DIGILAW 593 (ALL)

BADRI TIWARI v. BADRI TIWARI

2011-03-09

A.P.SAHI

body2011
JUDGMENT Hon’ble A.P. Sahi, J.—Heard Sri Triveni Shanker, learned counsel for the petitioners and the learned Standing Counsel for the respondent No. 1. 2. None has appeared on behalf of the respondent No. 2 inspite of the fact that a counter-affidavit has been filed and the name of the learned counsel appearing for the said respondent has been shown in the cause list. 3. The order under challenge has been passed by the Deputy Director of Consolidation whereby he has reversed the order of the Consolidation Officer dated 28.6.1975. 4. The facts shorn of details are that the petitioner-Badri Tiwari is alleged to have filed an objection under Section 9 of the U.P. Consolidation of Holdings Act raising his contentions. The said objection was allegedly misplaced after having been entertained. Instead of moving an application for reconstruction, the petitioner-Badri Tiwari appears to have moved a fresh objection on 11.12.1973. In the said objection, it was detailed that the objection under Section 9 had been listed on 6.11.1973, 29.11.1973 and 28.12.1973 whereafter the file was misplaced. Since file was not available and to avoid any inconvenience, the said objection was filed afresh. On the said application, a report appears to have been called for and the reader of the Consolidation Officer submitted a report on 18.12.1973 (Annexure 1 to the writ petition) stating therein that the objection had been filed but the file is untraceable and which is under search. 5. After having received the report, the Consolidation Officer passed an order on 24.12.1973 entertaining the said objection and condoning the delay in filing of the same. 6. Aggrieved, Ram Lalit alias Lalta-respondent No. 2 appear to have file a revision, which was allowed on 30th September, 1974 and the matter was remanded back to the Consolidation Officer to record a clear finding on the delay as explained by the petitioner and then to pass appropriate orders. After remand, the Consolidation Officer proceeded to discuss the issues raised and thereafter found that the delay deserves to be condoned keeping in view the report dated 18.12.1973 referred to hereinabove on payment of cost of Rs. 10/-. 7. After remand, the Consolidation Officer proceeded to discuss the issues raised and thereafter found that the delay deserves to be condoned keeping in view the report dated 18.12.1973 referred to hereinabove on payment of cost of Rs. 10/-. 7. The respondent No. 2 appears to have again preferred a revision against the same contending that the Chaks have been carved out and the possession has already been delivered in the year 1971 and that certain conciliatory orders have been passed by the Settlement Officer, Consolidation with regard to the same village, as such there was no plausible reason shown for the delay caused in the filing of the objection. 8. The Deputy Director of Consolidation came to the conclusion that the objections having been filed after three years, the delay was not liable to be condoned and accordingly set aside the order of the Consolidation Officer dated 28.6.1975. It is the said order which is under challenge before this Court. 9. Sri Triveni Shanker contends that firstly once the delay had been condoned and the cost had been accepted by the counsel for the other side then in view of the law laid down in the case of Rattan Chand and others v. Mori (Dead) By LRs. and others, (2010) 11 SCC 768 , paragraph 8, it was not open to the contesting respondents to have moved a revision. He further submits that the report of the reader which had been relied upon by the Consolidation Officer to condone the delay has not even been considered by the Deputy Director of Consolidation and without reversing the finding on the said issue, the Deputy Director of Consolidation has proceeded to pass the order on mere surmises and conjectures. 10. It is further submitted that the delay, which had been caused, was on account of the file having been misplaced from the office of the Consolidation Officer and that having been fully explained as narrated hereinabove, there was no actual delay or default on the part of the petitioner in filing of the objection. He, therefore, submits that the Consolidation Officer rightly proceeded to allow the delay condonation application and entertain the objection. 11. He, therefore, submits that the Consolidation Officer rightly proceeded to allow the delay condonation application and entertain the objection. 11. Having heard learned counsel for the petitioners and the learned Standing Counsel for the respondent No. 1, the fact that the Consolidation Officer had relied on the report of the reader to condone the delay is evident and the said fact has not been considered by the Deputy Director of Consolidation while reversing the order. The Deputy Director of Consolidation has also not considered the impact of the acceptance of the cost by the counsel for the other side and, therefore, in the opinion of the Court on these counts, the order of the Deputy Director of Consolidation dated 5.9.1975 is vitiated. 12. Accordingly, the order dated 5.9.1975 is set aside. 13. The Deputy Director of Consolidation concerned shall pass a fresh order keeping in view the observations made hereinabove. 14. The writ petition is allowed. —————